A Review of “Making Migration Law: The Foreigner, Sovereignty and the Case of Australia”
Making Migration Law: The Foreigner, Sovereignty, and the Case of Australia
Eve Lester, Cambridge University Press, 2018
The state’s assertion of “absolute sovereignty” as the dominant value over any presumed right to migrate from abroad is generally accepted in public discourse, but only dates from the last hundred years or so, according to Eve Lester. Prior to the French Revolution, when the foreigner became an outsider with inferior status to the citizen, European legal theory gave the foreigner many rights of mobility. And at the inception of Australia they could vote: in her recent book on the origin of our electoral system – “From Secret Ballot to Democracy Sausage” – the historian Judith Brett tells us that the Franchise Act 1902 allowed all adults who were inhabitants for six months or more to vote in national elections. Yet Aboriginal peoples were excluded. Internationally, Dr Lester says that the nineteenth century emergence of a common law doctrine of absolute sovereignty was connected to the appearance of racialised and non-European foreigners, and the desire to regulate their labour and proximity. In Australia, the first two substantive laws passed by the new parliament in 1901 expressed the White Australia policy, described by PM Edmund Barton as “not merely the realization of a policy, but a handsome new year’s gift for a new nation.”
More recently, the logic of the sovereign’s right of exclusion has permitted both mandatory detention and planned destitution of refugees needing protection, and how these two practices have been derived from sovereignty is the book’s theme. A recent example of the latter are the government cuts of 60% to the Status Resolution Support Services (SRSS) for asylum seekers on bridging visas, causing hunger, deteriorating health and homelessness for up to 80% of recipients. This application of enforced financial hardship as a legitimate policy instrument seems to date from the beginning of the Howard government in the mid 1990s (with Philip Ruddock as the relevant minister). I draw the reader’s attention to this book because the author documents how these are the two cornerstones of realising oppression as a policy objective.
The book explores the genealogy of this conflict (its historical origins and rationale) in Part One, and offers discourse analysis (case studies and framework) in Part Two. Part One reviews the foreigner-sovereign relationship as seen by the classical (15th to 18th century) international jurists Vitoria, Grotius, Pufendorf and Vattel. Part Two looks at how today’s accumulated ideology competes with earlier universal notions, such as humanitarian ethics, in the formation of policy. As less useful and therefore less worthy, refugees have replaced foreigners as the “other” to be feared and reviled and the author discusses the law’s “inextricable relation with history and language (conditioning) knowledge and being.” For example, a word count shows the term “people smuggler” only became common in the Australian parliament after 1999, suggesting its greater political utility compared to “refugees.”
Actions by a number of Australian immigration ministers are discussed in the book and illustrate the change in contemporary influences: two contrasts are Alick Downer, Menzies’ minister in the postwar period, and Peter Dutton the current minister. Downer had been a Japanese POW for 3 years, which seems to have tempered his views about compulsory detention: he supported constraints on his own powers due to the ‘latent dangers’ of ‘naked and uninhibited’ power, which could be ‘arbitrary’ and ‘capable of the gravest abuse.’ Ex-policeman Dutton is not concerned about limits to control and confinement, predicting in a 2016 speech that the refugee processing relationship with Nauru “will continue for decades.” Although domestic violence, involvement in crime gangs and national security threats have been announced as the basis for refusing citizenship, “character test” refusals can also be due to traffic offences, forged foreign driver’s licences, or petty theft such as stealing a pair of shoes.
Kevin Bain reviews refugee books at Independent Australia, and has compiled a Reading Guide for Mornington Peninsula Human Rights Group.
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